Kuhn v. Sol. Heavenrich Co.

• Decision Date: 21 October 1902
• Citation: 115 Wis. 447,91 N.W. 994
• Parties: KUHN v. SOL. HEAVENRICH CO.
• Court: Wisconsin Supreme Court

115 Wis. 447

91 N.W. 994

KUHN

v.SOL. HEAVENRICH CO.

Supreme Court of Wisconsin.

Oct. 21, 1902.

Appeal from circuit court, Ashland county; John K. Parish, Judge.

Action by W. D. Kuhn against the Sol. Heavenrich Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action by a landlord to recover $225, past-due rent, from his tenant. The leased premises consisted of the ground floor and part of the basement of a three-story building, the rest of the room therein being leased to various tenants, each having a specific portion thereof. There was no express covenant to keep the building or any part thereof in repair. The complaint was in the usual form. Defendant admitted the indebtedness and counterclaimed for damages to the amount of $378 upon the following alleged facts in addition to those before stated. In the building there was a shaft reaching from the surface of the roof to the ceiling above the first floor. The top, bottom and sides of the shaft were of glass. The purpose thereof was to light the various parts of the building. When defendant entered upon the enjoyment of his lease, the roof of the shaft was in a good state of repair. It was the landlord's duty to keep it so. May 25th, in the nighttime, there was a severe rainstorm, and because of the then defective condition of the lighting shaft, a large quantity of water was admitted into the building and found its way to defendant's stock of clothing on the first floor, damaging the same to the amount of $378. The roof of the shaft where the water entered was out of repair to the knowledge of plaintiff before such occurrence. He endeavored to repair it but failed to do so efficiently, by reason whereof the damage to defendant's property was caused.

Plaintiff moved for judgment on the pleadings, and the motion was granted. Defendant duly excepted to the ruling.R. Sleight, for appellant.

Sanborn & Sanborn, for respondent.

MARSHALL, J. (after stating the facts).

The trial court granted the motion, supposing the common law that in the absence of an express agreement to the contrary a landlord is under no obligation at all to his tenant to keep the leased premises in repair, ruled the case. Appellant contends that the rule is not universal; that it does not apply where there are several tenants in a building, each having a distinct part thereof, except as to each tenant for his particular part; that as to those portions of the building necessary for the protection or convenience of all of the tenants in the enjoyment of their respective holdings and used by them in common, such as the stairways, the halls and the roof--portions which do not pass under the control of any particular tenant--the landlord is bound by an implied promise, forming part of the leasehold contract, to keep the same in repair; and that such exception entitled appellant to recover on its counterclaim.

The position urged upon our attention is not entirely without authority to support it, though counsel is in error, we think, in the idea that the weight of authority is that way. The question is interesting and important. It has not been decided here that we are aware of, in a case exactly like this, though it has been in principle, as we shall see later. That there is a duty resting on the landlord in such a situation, to not cause injury to his tenant, and to prevent such injury, has been held in many jurisdictions in actions grounded on negligence. But there is no authority worthy of our consideration, to support the idea that the duty is one resting in contract. The distinction between the obligations of a contract and the obligation which one owes to another respecting that other's personal safety and the safety of his property, has been many times lost sight of in considering this question, as what follows will demonstrate.

This language from 18 Am. & Eng. Enc. Law (2d Ed.) p. 220, is called to our attention:

“The rule laid down by the weight of authority is that where the landlord leases separate portions of the same building to different tenants and reserves under his control those parts of the building or premises used in common by all the tenants, he is under an implied obligation to use reasonable diligence to keep in a safe condition the parts over which he so reserves control.”

The writer of that text, as is indicated not only by the language used but by the authorities cited, did not use the term “obligation” in a contractual sense, but in that of the duty which, in certain situations, one owes to avoid injuring another, a violation of which constitutes a tort and is actionable as such. In one of the leading cases referred to it was expressly stated that the responsibility of the landlord “cannot be based upon any contract obligation, but must rest entirely upon the element of delictum.” Edwards v. Railroad Co., 98 N. Y. 245, 50 Am. Rep. 659. In speaking of the contract relations between landlord and tenant, the writer of the quoted language, at page 218, vol. 18, says:

“The general rule that the landlord is under no implied obligation to keep the demised premises in repair is, in most jurisdictions, held equally applicable where only a part of a building is demised; and the landlord is held to be under no implied obligation to keep the portion of the building not demised to the tenant in repair, so as to render tenantable and secure the portion demised to the tenant.”

The writer, like many courts that have treated the subject, failed to bring out clearly the distinction before mentioned, that between implied covenant springing from the lease, and liability for a tortious violation of that duty one person owes to another as regards safety of his person and property.

The cases cited in support of the declaration that in the circumstances under discussion the landlord owes his tenant a duty, went, it will be discovered, as a rule, upon the doctrine of “Sic utere tuo ut alienum non lædas,” though there is reason to say that in some of them the legitimate scope of the maxim was misconceived. There can be no reasonable controversy but that it cannot properly be applied to an obligation resting merely in contract. The idea of it is that no one has a legal right to so use his own property as to injure, in a physical sense, the property of another.

Toole v. Beckett, 67 Me. 544, 24 Am. Rep. 54, is confidently referred to by appellant's counsel. It is sufficient for this case to say of that one that the action was not to recover on contract, but for a tortious act. True, the nature of the wrong complained of was failure to repair a roof under very much the same circumstances as those we have before us; and if this were an action for damages for negligent inattention to the roof, Toole v. Beckett would be in point for what it is worth, though it has been pronounced unsound by most courts that have considered it. Certainly, none of the authorities cited by the learned court in support of its decision involved an implied contract as between landlord and tenant or any other obligation specially applicable to that relation. To illustrate: Kirby v. Association, 14 Gray, 249, 74 Am. Dec. 682, was an action for personal injuries caused by a sidewalk being unsafe for travel by reason of an accumulation of snow and ice thereon. It was claimed that such unsafe condition was produced by the improper discharge of water upon the walk from the defendant's building, the rooms in which were occupied by numerous tenants, each having a specific part thereof, the defendant retaining charge of the passage ways and roof and general care of all parts of the building necessary for the common use of the tenants. The court held that if the defendant's structure produced the nuisance which caused the injury he was liable. It will be easily seen that the principle involved is familiar and has nothing to do with the contractual duties of the owner of a building to his tenants. Priest v. Nichols, 116 Mass. 401, was an action sounding in tort. It did not involve any question whatever as to the duty of a landlord specially to his tenant to repair. The wrong complained of would have been actionable had it been committed to another tenant in the building or by a stranger. The landlord used a part of the structure as an engine room. He operated the engine in such a negligent manner as to...